Carter v. Spencer

United States District Court, D. Massachusetts

November 22, 2016

ANTWAN CARTER, Plaintiff,v.LUIS SPENCER, et al., Defendants.

ORDER.

NATHANIEL M. GORTON UNITED STATES DISTRICT JUDGE

Antwan
Carter (“Carter”), who is incarcerated at the
Souza-Baranowski Correctional Center, has filed a civil
rights action in which he alleges that his rights under
federal and state law were violated when he was assaulted by
two correction officers and threatened by a third
correctional officer in October 2013. Carter has also filed
motions for leave to proceed in forma pauperis,
permission to complete service by certified mail, and the
appointment of counsel.

Upon
review of the motions, the Court rules as follows:

1. The
renewed motion for leave to proceed in forma
pauperis (Docket No. 9) is DENIED because Carter has
adequate funds to prepay the filing fee.

According
to Carter's prison account statement (Docket No. 11), the
average balance of his institutional account between April
18, 2016, and October 21, 2016, was $3, 600.55. Expenditures
and income for the same time period were $2, 425.14 and
$249.19, respectively. As of October 21, 2016, the balance
was $2, 658.89. Based on this financial record, the Court
concludes that Carter is presently able to prepay the $400
filing fee (which includes a $50 administrative fee).

Even if
the Court were inclined to allow Carter to proceed without
prepayment of the fee, the statutory initial partial filing
fee would exceed the fee amount. Under 28 U.S.C. §
1915(b)(1), when the Court allows a prisoner plaintiff to
proceed without prepayment of the filing fee, the Court must
assess an initial partial filing fee in the amount of twenty
percent of the greater of the prisoner's average monthly
income or monthly institutional account balance over the
preceding six months.[1] Using this formula, Carter's initial
filing fee would be $720.11 (twenty percent of $3, 600.55),
far in excess of the filing fee. “Since the
‘initial partial filing fee' calculated pursuant to
28 U.S.C. § 1915 is not partial, but instead exceeds the
amount of the full filing fee due[, ] the court does not
assess an initial fee. Instead, the court denies
plaintiff's Motion for Leave to Proceed in forma
pauperis.” Landry v. Davis, C.A. No. 08-03244,
2009 WL 274242, at *1 (D. Kan. Jan. 26, 2009).

If
Carter wishes to prosecute this action, he must, within
thirty-five days, pay the $400 filing fee. Failure to do so
will result in dismissal of the action.

2. The
motion for service by certified mail (Docket No. 3) is
DENIED.

Service
of the complaint and summonses must comply with Rule 4 of the
Federal Rules of Civil Procedure (“Rule 4”),
which only explicitly provides for service by certified mail
upon the United States and its agencies, corporations,
officers, or employees. See Fed.R.Civ.P. 4(i)(1),
(2). In regards to service of individuals, unless they are
incompetent or located in a foreign country, see
Fed.R.Civ.P. 4(f), (g), the plaintiff must serve the
individual under Rule 4(e) or obtain a waiver of service
under Rule 4(d). Under Rule 4(e), service upon an individual
may be effected by:

(A) delivering a copy of the summons and of the complaint to
the individual personally; (B) leaving copies thereof at the
individual's dwelling house or usual place of abode with
some person of suitable age and discretion then residing
therein; or (C) delivering a copy of the summons and of the
complaint to an agent authorized by appointment or by law to
receive service of process.

Fed. R. Civ. P. 4(e)(2). Rule 4(e) also allows for service in
the manner allowed under state law. See Fed.R.Civ.P.
4(e)(1). Under Massachusetts law, an individual located
within the state is served:

by delivering a copy of the summons and of the complaint to
him personally; or by leaving copies thereof at his last and
usual place of abode; or by delivering a copy of the summons
and of the complaint to an agent authorized by appointment or
by statute to receive service of process.

Mass. R. Civ. P. 4(d)(1). Because neither Rule 4 nor its
state counterpart provides for service upon individuals by
certified or registered mail, the Court denies the motion to
complete service by certified mail. Nothing in this order
precludes Carter from asking the ...

Our website includes the first part of the main text of the court's opinion.
To read the entire case, you must purchase the decision for download. With purchase,
you also receive any available docket numbers, case citations or footnotes, dissents
and concurrences that accompany the decision.
Docket numbers and/or citations allow you to research a case further or to use a case in a
legal proceeding. Footnotes (if any) include details of the court's decision. If the document contains a simple affirmation or denial without discussion,
there may not be additional text.

Buy This Entire Record For
$7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.